- posted: Nov. 17, 2019
This article provides a short summary of current Louisiana law on wills and testaments, reflecting a few changes that have occurred over the last several years. Louisiana does not recognize oral or verbal testaments. As such, there are only two (2) valid forms of Louisiana last wills and testaments, both of which must be in writing. One form is an olographic testament and the other is a notarial testament. The author must intend for the writing to be his or her last will and testament.
An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his or her signature, the testament is not invalid as that portion of the testament may be considered by the court, in its discretion, as part of the testament. The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary. Additions and deletions on the testament may be given effect only if made by the hand of the testator.
A notarial testament is one prepared in writing, usually typed, where the testator signifies before a notary and two (2) subscribing witnesses that the written document is indeed his or her testament. The capacity of the testator controls the method by which the testament must be executed. Generally, the testator signs at the bottom of each page and at the end of the testament in the presence of the notary and two (2) subscribing witnesses. The notarial testament must also contain the appropriate attestation clause, which your attorney will prepare in drafting the testament. There are additional requirements depending on the condition of the testator. The additional requirements arise when the testator is literate, but is physically unable to sign his or her name, or if the testator is unable to read, or if the testator is deaf or deaf and blind.
The witnesses to the notarial testament must also be competent witnesses. A person may not be a witness to a testament if he or she is insane, blind, deaf, illiterate, under the age of sixteen, a spouse of the testator, or unable to sign his name. The notary and witnesses may not receive a bequest under the testament; as such a bequest is invalid. However, should the testator bequeath a legacy to either the notary or a witness, such bequest does not invalidate the entire testament. There are specific provisions of law which give guidance in such a situation.
Testaments are revocable during the lifetime of the testator and any provision to the contrary is null. To revoke a testament, the testator may physically destroy the testament or have the testament destroyed at his direction. The testator may also revoke the testament by such a declaration contained in a subsequently executed testament. A revocation may also be made by authentic act, which act is done by signifying this intention in writing before a notary and two (2) witnesses. A handwritten revocation may be made by the testator so long as the revocation is signed by the testator. There are also means by which the testator may revoke specific provisions of the testament without revoking the whole testament.
There are exceptions to most general rules, so please consult an attorney to ensure your last will and testament is drafted in accordance with Louisiana law.
By: Dallas K. Kingham
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